Regaining Custody in Divorce

    Nancy Michaels' story about regaining custody of her three children is a grueling one. The 44-year-old marketing specialist found herself after a series of debilitating health crisis, facing the worst possible scenario –- losing her kids.  

The story starts with the end of her marriage. Michaels’ husband had walked out eight months earlier, and she was working hard to get herself back on track following an almost-20 year marriage to a controlling husband. She had been feeling sick for months, but doctors were not able to diagnose the problem. One night, feeling particularly worse, she went to the local ER.  

“I fell into a coma two days later and literally was unconscious for two months,” said Michaels, from Concord, Mass. The diagnosis was liver failure. Apparently, Michaels had a powerful form of the herpes virus that showed no outward signs, but adversely affected her internal organs. She suspected that she got the virus from her unfaithful husband.   

During her time in a coma, Michaels’ estranged husband was invisible. “He was not there; he never sent a card; he never called my family. And in the meantime, I lost custody of my kids. He moved back into the home. Basically, when I finally woke up from the coma, I had nothing.”   

It took almost a year following a successful liver transplant for Michaels to recover. During that time, she lived with her parents, far away from her children, but saw them every weekend.  “It was after I began to regain my health that he insisted on a Guardian Ad Litem to evaluate me as a capable parent,” she said. “It seemed he suddenly questioned my motives as a caring and loving mother. Once he left our home he seemed to have a laundry list of items that caused him to question my commitment as a mother; mainly that I worked outside the home and traveled some for business. Ironically, it never came up as a significant problem when we were married. I believe he was thinking/hoping I would not regain my health.”   

A Guardian ad Litem is a court-appointed representative of a minor child. “Once I was well enough, I moved back to an apartment in Concord and saw my kids every afternoon. And I was finally granted primary custody.”   

Michaels’ situation is not your average custody battle, right down to the final outcome. Lawyers point out that changing custody rulings is one of the toughest things to do in a divorce.  “Most courts in the U.S. use a ‘best interest of the child’ standard. A parent without custody needs to prove the status quo is not in the best interest of the child. And the arguments you use have to be tailored to the age and situation of the child,” said Belinda Rachman, 52, a Carlsbad, Calif.-based lawyer specializing in divorce  mediation.